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HomeMy WebLinkAboutC-7309-3 - Beacon Bay, 56 - Consent to Assignment of Agreement to Lease 1990RECORDINd REQUESTED AND WHEN RECORDED RETURN TO: City Manager ►s Office City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Attn: Kenneth J. Delino 90-4T5459 RECORDED IN AL RECORDS OF ORANGE COUNTY CALIFORNIA 2:30 P.M. SEP 61990 $11.00 ofzt- a• RECORDER I C10 Space above line for Recorder's use only CONSENT TO ASSIGNMENT OF AGREEMENT TO LEASE THIS CONSENT is given this 25th day of July , 1990 by the CITY OF NEWPORT BEACH, a chartered municipal cor- poration (hereinafter the "City") on the following terms and conditions: RECITALS A. The City entered into a Lease dated January 1, 1988 ("the Lease"), with Zrthirr 7ncTRt_rnm_and Beverly Engstrom ("Lessee covering certain real property described as Lot 56 in the City of Newport Beach, County of Orange, State of California, as per Record of Survey Map filed in Book 9, Pages 42 and.43 of Record of Surveys, in the Office of the County Recorder of said County (the "Property"). B. Lessee is current- 7 legging the Proper'Fy from The ...``y� - � 1. v,.. City. The lease expires July 1, 2006. C. Lessee has applied to Union Bank ("Lender") for a real estate loan to be secured by Lessee's interest in the Property.Lessee has also agreed to assign Lessee's rights under the Lease to Lender. As a condition to making such loan, Lender has required that the City consent to such assignment of the Lease according to the terms hereof. CONSENT NOW, THEREFORE, the City does hereby consent to the assignment to Lender of Lessee's rights under the Lease and further agrees in favor of Lender as follows: 1. Should Lessee default under the loancbscribed above and Lender foreclose on the leasehold interest under the Les.se, the City agrees that it shall confirm in writing to Lender or any other purchaser of Lender or such other purchaser has the rights of Lessee under the Lease and is entitled to enter into a lease with the Cit --y pursuant to the terms and conditions of the Lease. The foregoing agreement of the City shall apply with equal force if the leasehold interest under the lease is assigned to Lender in lieu of foreclosure. The amounts to be paid to the City pursuant to the Lease shall be adjusted pursuant to Section 4 of the Lease upon the earlier of (a) any transfer by Lender of the leasehold interest under the lease and the rights of Lessee under the Lease, or (b) a date six months after acquisition by Lender of the leasehold interest under the Lease by foreclosure or in lieu of foreclosure. 2. Said assignment of the Lease to Lender and all rights acquired thereunder shall be subject to each and all of the covenants, conditions and restrictions set forth in the Lease and to all rights and interest of the City thereunder, except as herein otherwise provided. 3. In the event of any conflict between the provisions of the Lease and the provisions of any such assignment to Lender, the provisions of the Lease shall control. 4. Lender shall be liable to perform the obligations of Lessee under the Agreement only so long as Lender holds title to the leasehold interest under the Lease. 5. The City agrees that it will not terminate the Lease because of anv default or breach thereunder on the part of Lessee if Lender, within sixty (60) days after service of written notice on Lender by the City of its intention to terminate the Lease for such default or breach, shall: (a) Cure such default be cured by the payment or vided to be paid under the (b) If such default o cause the Trustee under th loan to Lessee to commence pursue to completion steps foreclosure, the exercise and pursuant to said Trust by law, or accept from the of foreclosure; and or breach if the same can expenditure of money pro - terms of the Agreement; or r breach is not curable, e Trust Deed securing Lender's and thereafter to diligently and proceedings for judicial of the power of sale under Deed in the manner provided Lessee an assignment in lieu (c) Keep and perform all of the covenants and conditions of the Lease requiring the payment or ex- penditure of money by Lessee until the time as said leasehold shall be sold upon foreclosure pursuant to said Trust Deed, be released or reconveyed thereunder, sold upon Judicial foreclosure or t--ansferred big assignment in lieu of foreclosure; provided, however, if Lender shall fail or refuse to comply with any and all of the conditions of this paragraph, then and thereupon the City shall be released from the covenant of forebearance herein contained. 6. The prior written consent of the City shall not be required: (a) To a further assignment by Lender of its rights under the Lease in connection with a transfer of the leasehold interest under the Lease at foreclosure sold under Lender's Trust Deed, under judicial foreclosure, or (b) To any subsequent assignment by Lender if Lender is the purchaser at such foreclosure sale; provided that in either such event Lender forthwith gives notice to the City in writing of any such assignment setting forth the name and address of the as,sigree, the effective date of such assignment and the express agreement of the assignee assuming and agreeing to perform, all of the ob- ligations of the Lease together with a copy of the document by which such assignment was made. Any assignee under the above shall be liable to perform the obligations of Lessee under the Lease only so long as such assignee holds title to the leasehold interest under the Lease. Any subsequent assignment of the Lease shall be made subject to the conditions relating thereto as set forth in the Lease. 2. 7. The City hereby represents and warrants to Lender that there exists no default under the Lease by any party thereto. Without limiting the generality of the foregoing sentence, there is no defense or offset to the enforcement of any of the rights of Lessee under the Lease and Lessee is not in default of any of Lessee's monetary obligations thereunder. 8. All notices and other communications rea_uired or permitted under this Consent to Assignment shall be in writing, served personally on, or mailed by certified or registered United States mail to, the party to be charged with receipt thereof. Notices and other communications served by mail or communication in a United States post office in Orange County, California, as certified or registered mail with postage prepaid; and duly addressed to the party to whom such notice or communication is to be given, in the case of Lender: Union Bank, Orange County Regional Office, 500 South Main Street, Suite 305, Orange, CA 92668 In the case of the City: City of Newport Beach, 3300 Newport Boulevard, Newport Beach, California 92663, Attention: City Manager. Any such party may change.said party's address for purposes of this Section 8 by giving the party intended to be bound hereby, in the manner provided herein, a written notice of such change. 9. The provisions hereof shall be binding upon and inure to the benefit of the Lender and its transferee(s). In this context, the City acknowledges that Lender intends to assign its interest under the Lease and the loan.to Lessee, and the City consents thereto under the terms her -of. IN WITNESS WHEREOF, the City has executed this Consent as of the day and year first above written. ATTEST: �f City Clerk APPROVF,,ID AS TO FORM AND CON Ciff'Kt t`62n- e CITY OF NEWPORT BEACH 'k- / _1\ (/ � ", , , By Robert L. Wynn City Manager 3. & STATE OF CALIFORNIA COUNTY OF Orange ss. ACKNOWLEDGMENT—General —WolcotIs Form 233CA—Rev. 5-82 ©1982WOLCOTTS,INC. (price class 8-2) On this 10th day of August , in the year 19 90 , before me, the undersigned, a Notary Public in and for said State, ersonally appeared Robert L. Wynn, known to me to be the My of Manager and Wanda E. Raggio, known to me to be the City Clerk of the City of Newport Beach and personally known tome (or proved to me on the basis of satisfactory evidence) to be the person S whose name S are subscribed to the within instrument, and acknowledged to me that —they_ executed it. WITNESS my hand and official seal. C7 �� Notary ublic in and for said State. DOROTHY L. PALEN "a.° ti 0F FICIAL SEAL ; DOROTHY L. PALEN NOTARY PUKIC - CALIFORNIA °"FOR." ORANGE COUNTY Iffy Comm. Expires may 25, 1993 ACKNOWLEDGMENT—General —WolcotIs Form 233CA—Rev. 5-82 ©1982WOLCOTTS,INC. (price class 8-2) On this 10th day of August , in the year 19 90 , before me, the undersigned, a Notary Public in and for said State, ersonally appeared Robert L. Wynn, known to me to be the My of Manager and Wanda E. Raggio, known to me to be the City Clerk of the City of Newport Beach and personally known tome (or proved to me on the basis of satisfactory evidence) to be the person S whose name S are subscribed to the within instrument, and acknowledged to me that —they_ executed it. WITNESS my hand and official seal. C7 �� Notary ublic in and for said State. DOROTHY L. PALEN